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EXHIBIT 1.2
WELLS FARGO ASSET SECURITIES CORPORATION
Mortgage Pass-Through Certificates
(Issuable in Series)
UNDERWRITING AGREEMENT
Effective as of February 15, 2006
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Ladies and Gentlemen:
Wells Fargo Asset Securities Corporation, a Delaware corporation
("WFASC"
or the "Seller") proposes to issue and sell from time to time
its Mortgage
Pass-Through Certificates in various series, each series of
which may be divided
into classes, in one or more offerings on terms determined at
the time of sale.
One or more series of Mortgage Pass-Through Certificates may be
offered through
you, as underwriter (the "Underwriter"). Whenever WFASC
determines to make an
offering of a series of its Mortgage Pass-Through Certificates
through the
Underwriter, WFASC and Wells Fargo Bank, N.A., a national
banking association
(in such capacity, "Wells Fargo Bank"), will enter into an
agreement (the "Terms
Agreement") with the Underwriter, in substantially the form
attached hereto as
Exhibit A, providing for the sale of such series of Mortgage
Pass-Through
Certificates to the Underwriter. WFASC is a wholly-owned
subsidiary of Wells
Fargo Bank. The Mortgage Pass-Through Certificates of the series
and classes to
be sold in each offering to the Underwriter under this
Underwriting Agreement,
as supplemented by the applicable Terms Agreement, are
hereinafter referred to
as the "Certificates." The Mortgage Pass-Through Certificates of
the same series
that are not being sold in each offering to the Underwriter
under this
Underwriting Agreement are hereinafter referred to as the "Other
Certificates."
The Certificates will have the characteristics set forth in the
applicable Terms
Agreement and will evidence the ownership interests in a trust
consisting of a
pool (the "Mortgage Pool") of mortgage loans acquired by WFASC
(the "Mortgage
Loans") and related property but excluding the Fixed Retained
Yield, if any,
specified in the Terms Agreement (collectively, the "Trust
Estate"). The
Mortgage Loans will be of the type described in, and will have
the
characteristics and aggregate principal balance set forth in,
the Prospectus
Supplement (as hereinafter defined).
The Certificates will be issued pursuant to a pooling and
servicing
agreement (the "Pooling and Servicing Agreement"), dated as of
the close of
business on the date specified in the applicable Terms
Agreement, by and among
WFASC, as depositor, Wells Fargo Bank, as master servicer (in
such capacity, the
"Master Servicer"), the trustee identified in the applicable
Terms Agreement, as
trustee (the "Trustee") and, if applicable, the trust
administrator identified
in the applicable Terms Agreement, as trust administrator (the
"Trust
Administrator"). The Certificates will be issued in
denominations of $25,000, or
such lesser or greater amounts as may be specified in the
applicable Terms
Agreement, and will have the terms set forth in the Prospectus
Supplement. The
Certificates will conform in all material respects to the
description thereof
contained in the applicable Terms Agreement and the Prospectus
Supplement. The
Terms Agreement may take the form of an exchange of any standard
form of written
communication among the Underwriter, WFASC and Wells Fargo Bank.
Each offering
of Mortgage Pass-Through Certificates under this Underwriting
Agreement will be
governed by this Underwriting Agreement, as supplemented by the
applicable Terms
Agreement. This Underwriting Agreement, as supplemented by the
applicable Terms
Agreement, is referred to herein as this "Agreement."
1. Representations and Warranties. (a) WFASC represents and
warrants to,
and agrees with, the Underwriter as of the date of the
applicable Terms
Agreement that:
(i) A registration statement (File No. 333-129159), including
a
prospectus (the "Base Prospectus"), has been filed with the
Securities and
Exchange Commission (the "Commission") and has become effective
under the
Securities Act of 1933, as amended (the "Act"), and no stop
order
suspending the effectiveness of such registration statement has
been
issued and no proceedings for that purpose have been initiated
or, to
WFASC's knowledge, threatened by the Commission; and the Base
Prospectus
in the form in which it will be used in connection with the
offering of
the Certificates is proposed to be supplemented by a prospectus
supplement
relating to the Certificates and, as so supplemented, to be
filed with the
Commission pursuant to Rule 424 under the Act. (Such
registration
statement, as amended to the date of the applicable Terms
Agreement, is
hereinafter referred to as the "Registration Statement"; such
prospectus
supplement, as first filed with the Commission, is hereinafter
referred to
as the "Prospectus Supplement"; and such Base Prospectus, in the
form in
which it will first be filed with the Commission in connection
with the
offering of the Certificates, as supplemented by the
Prospectus
Supplement, is hereinafter referred to as the "Prospectus").
(ii) The Registration Statement and the Prospectus, as of the
date
of the Prospectus Supplement, will conform, and the Registration
Statement
and the Prospectus, as revised, amended or supplemented and
filed with the
Commission prior to the termination of the offering of the
Certificates,
as of their respective effective or issue dates, will conform in
all
material respects to the requirements of the Act and the rules
and
regulations of the Commission thereunder applicable to such
documents as
of such respective dates, and the Registration Statement and
the
Prospectus, as revised, amended or supplemented and filed with
the
Commission as of the "Closing Date" (as hereinafter defined),
will conform
in all material respects to the requirements of the Act and the
rules and
regulations of the Commission thereunder applicable to such
documents; and
the Registration Statement and the Prospectus, as of the date of
the
Prospectus Supplement, will not include any untrue statement of
a material
fact and will not omit to state a material fact required to be
stated
therein or necessary to make the statements therein not
misleading and, in
the case of the Prospectus, as revised, amended or supplemented
and filed
prior to the Closing Date, as of the Closing Date, including for
these
purposes any portion of the Applicable Static Pool Information
(as defined
in Section 9(b)(i)) deemed not part of the Registration
Statement or the
Prospectus on account of Item 1105(d) of Regulation AB under the
Act, will
not include any untrue statement of a material fact and will not
omit to
state a material fact required to be stated therein or necessary
to make
the statements therein not misleading; provided, however, that
WFASC makes
no representations, warranties or agreements as to the
information
contained in or omitted from the Prospectus or any revision or
amendment
thereof or supplement thereto in reliance upon and in conformity
with
information furnished in writing to WFASC by or on behalf of
the
Underwriter specifically for use in connection with the
preparation of the
Prospectus or any revision or amendment thereof or supplement
thereto. The
Issuer Free Writing Prospectus (as defined in Section 9(b)(i)),
as amended
or supplemented, will not contain any untrue statement of a
material fact
or omit to state a material fact necessary to make the
statements therein,
in light of the circumstances under which they were made, not
misleading,
in either case at the Time of Sale (as defined in Section 7(f))
to the
applicable investor, when considered in conjunction with the
Time of Sale
Information (as defined in Section 7(f)), provided, however,
that no
representation is made as to the effect of the exclusion from
the Issuer
Free Writing Prospectus of any information of the type specified
in
Exhibit B hereto as Supplemental Information.
(iii) Assuming that certain of the Certificates are rated at
the
time of issuance in one of the two highest rating categories by
a
nationally recognized statistical rating organization, each
such
Certificate at such time will be a "mortgage related security"
as such
term is defined in Section 3(a)(41) of the Securities Exchange
Act of
1934, as amended (the "Exchange Act").
(iv) Each of the Certificates will conform in all material
respects
to the description thereof contained in the Prospectus, and each
of the
Certificates, when validly authenticated, issued and delivered
in
accordance with the Pooling and Servicing Agreement, will be
duly and
validly issued and outstanding and entitled to the benefits of
the Pooling
and Servicing Agreement, and immediately prior to the delivery
of the
Certificates to the Underwriter, WFASC will own the
Certificates, and upon
such delivery the Underwriter will acquire title thereto, free
and clear
of any lien, pledge, encumbrance or other security interest
other than one
created or granted by the Underwriter or permitted by the
Pooling and
Servicing Agreement.
(v) This Agreement has been duly authorized, executed and
delivered
by WFASC and, as of the Closing Date, the Pooling and Servicing
Agreement
will have been duly authorized, executed and delivered by WFASC
and will
conform in all material respects to the description thereof
contained in
the Prospectus and, assuming the valid execution thereof by the
Trustee,
the Trust Administrator, if applicable, and the Master Servicer,
the
Pooling and Servicing Agreement will constitute a valid and
binding
agreement of WFASC enforceable in accordance with its terms,
except as the
same may be limited by bankruptcy, insolvency, reorganization or
other
laws relating to or affecting the enforcement of creditors'
rights and by
general equity principles.
(vi) WFASC has been duly incorporated and is validly existing as
a
corporation in good standing under the laws of the State of
Delaware with
corporate power and authority to own its properties and conduct
its
business as described in the Prospectus and to enter into and
perform its
obligations under the Pooling and Servicing Agreement and this
Agreement.
(vii) Neither the issuance or delivery of the Certificates, nor
the
consummation of any other of the transactions contemplated
herein, nor
compliance with the provisions of the Pooling and Servicing
Agreement or
this Agreement, will conflict with or result in the breach of
any material
term or provision of the certificate of incorporation or bylaws
of WFASC,
and WFASC is not in breach or violation of or in default (nor
has an event
occurred which with notice or lapse of time or both would
constitute a
default) under the terms of (i) any indenture, contract, lease,
mortgage,
deed of trust, note agreement or other evidence of indebtedness
or other
agreement, obligation or instrument to which WFASC is a party or
by which
it or its properties are bound, or (ii) any law, decree, order,
rule or
regulation applicable to WFASC of any court or supervisory,
regulatory,
administrative or governmental agency, body or authority, or
arbitrator
having jurisdiction over WFASC, or its properties, the default
in or the
breach or violation of which would have a material adverse
effect on WFASC
or the ability of WFASC to perform its obligations under the
Pooling and
Servicing Agreement; and neither the delivery of the
Certificates, nor the
consummation of any other of the transactions contemplated
herein, nor the
compliance with the provisions of the Pooling and Servicing
Agreement or
this Agreement will result in such a breach, violation or
default which
would have such a material adverse effect.
(viii) No filing or registration with, notice to, or
consent,
approval, authorization or order or other action of, any court
or
governmental authority or agency is required for the
consummation by WFASC
of the transactions contemplated by this Agreement or the
Pooling and
Servicing Agreement (other than as required under state
securities laws or
Blue Sky laws, as to which no representations and warranties are
made by
WFASC), except such as have been, or will have been prior to the
Closing
Date, obtained under the Act, and such recordations of the
assignment of
the Mortgage Loans to the Trustee or, if applicable, to the
Trust
Administrator on behalf of the Trustee, pursuant to the Pooling
and
Servicing Agreement that have not yet been completed.
(ix) There is no action, suit or proceeding before or by any
court,
administrative or governmental agency, or other tribunal,
domestic or
foreign, now pending to which WFASC is a party, or, to the best
of WFASC's
knowledge, threatened against WFASC, which could reasonably
result
individually or in the aggregate in any material adverse change
in the
condition (financial or otherwise), earnings, affairs,
regulatory
situation or business prospects of WFASC or could reasonably
interfere
with or materially and adversely affect the consummation of
the
transactions contemplated herein.
(x) On the Closing Date the representations and warranties made
by
WFASC in the Pooling and Servicing Agreement will be true and
correct in
all material respects as of the date made.
(xi) At the time of execution and delivery of the Pooling
and
Servicing Agreement, WFASC will own the mortgage notes (the
"Mortgage
Notes") being transferred to the Trust Estate pursuant thereto,
free and
clear of any lien, mortgage, pledge, charge, encumbrance,
adverse claim or
other security interest (collectively, "Liens"), except to the
extent
permitted in the Pooling and Servicing Agreement, and will not
have
assigned to any person other than the Trust Estate any of its
right, title
or interest, exclusive of the Fixed Retained Yield, if any, in
the
Mortgage Notes. WFASC will have the power and authority to
transfer the
Mortgage Notes to the Trust Estate and to transfer the
Certificates to the
Underwriter, and, upon execution and delivery to the Trustee of
the
Pooling and Servicing Agreement, payment by the Underwriter for
the
Certificates, and delivery to the Underwriter of the
Certificates, the
Trust Estate will own the Mortgage Notes (exclusive of the Fixed
Retained
Yield, if any) and the Underwriter will acquire title to the
Certificates,
in each case free of Liens except to the extent permitted by the
Pooling
and Servicing Agreement.
(xii) Any taxes, fees and other governmental charges in
connection
with the execution, delivery and issuance of this Agreement, the
Pooling
and Servicing Agreement and the Certificates have been or will
be paid by
WFASC on or prior to the Closing Date, except for fees for
recording
assignments of mortgage loans to the Trustee or, if applicable,
to the
Trust Administrator on behalf of the Trustee, pursuant to the
Pooling and
Servicing Agreement that have not yet been completed, which fees
will be
paid by WFASC in accordance with the Pooling and Servicing
Agreement.
(xiii) The transfer of the Mortgage Loans and the related assets
to
the Trust Estate on the Closing Date will be treated by WFASC
for
financial accounting and reporting purposes as a sale of assets
and not as
a pledge of assets to secure debt.
(xiv) WFASC is not, and on the date on which the first bona
fide
offer of the Certificates is made will not be, an "ineligible
issuer," as
defined in Rule 405 under the Act.
(b) Wells Fargo Bank represents and warrants to, and agrees
with, the
Underwriter as of the date of the applicable Terms Agreement
that:
(i) Wells Fargo Bank is a national banking association duly
chartered and validly existing in good standing under the laws
of the
United States with corporate power and authority to own its
properties and
conduct its business as described in the Prospectus and to enter
into and
perform its obligations under this Agreement.
(ii) The execution and delivery by Wells Fargo Bank of this
Agreement are within the corporate power of Wells Fargo Bank and
have been
duly authorized by all necessary corporate action on the part of
Wells
Fargo Bank.
(iii) Neither the execution and delivery of this Agreement, nor
the
consummation by Wells Fargo Bank of any other of the
transactions
contemplated herein, nor compliance with the provisions of this
Agreement,
will conflict with or result in the breach of any material term
or
provision of the corporate charter or bylaws of Wells Fargo
Bank.
(iv) This Agreement has been duly authorized, executed and
delivered
by Wells Fargo Bank.
2. Purchase Price. The purchase price at which the Underwriter
will
purchase the Certificates shall be the aggregate purchase price
set forth in the
applicable Terms Agreement.
3. Delivery and Payment. The Certificates shall be delivered at
the
office, on the date and at the time specified in the applicable
Terms Agreement,
which place, date and time may be changed by agreement between
the Underwriter
and WFASC (such date and time of delivery of and payment for the
Certificates
being hereinafter referred to as the "Closing Date"). Delivery
of the
Certificates shall be made to the Underwriter against payment by
the Underwriter
of the purchase price therefor to or upon the order of WFASC in
same-day funds.
The Certificates shall be registered in such names and in such
denominations as
the Underwriter may have requested not less than two business
days prior to the
Closing Date. WFASC agrees to have the Certificates available
for inspection,
checking and packaging in New York, New York, on the business
day prior to the
Closing Date.
4. Offering by Underwriter. (a) It is understood that the
Underwriter
proposes to offer the Certificates for sale as set forth in the
Prospectus and
that the Underwriter will not offer, sell or otherwise
distribute the
Certificates (except for the sale thereof in exempt
transactions) in any state
in which the Certificates are not exempt from registration under
state
securities laws or Blue Sky laws (except where the Certificates
will have been
qualified for offering and sale at the direction of the
Underwriter under such
state securities laws or Blue Sky laws). In connection with such
offering(s),
the Underwriter agrees to provide WFASC with information related
to the offer
and sale of the Certificates that is reasonably requested by
WFASC, from time to
time (but not in excess of three years from the Closing Date),
and necessary for
complying with its tax reporting obligations, including, without
limitation, the
issue price of the Certificates.
(b) The Underwriter agrees that it will not sell or transfer
any
Certificate or interest therein in the initial sale or transfer
of such
Certificate by the Underwriter in an amount less than the
minimum denomination
for such Certificate to be set forth in the Prospectus
Supplement.
(c) The Underwriter agrees that (i) if it delivers to an
investor the
Prospectus in portable document format ("PDF"), upon the
Underwriter's receipt
of a request from the investor within the period for which
delivery of the
Prospectus is required, the Underwriter will promptly deliver or
cause to be
delivered to the investor, without charge, a paper copy of the
Prospectus and
(ii) it will provide to WFASC any Underwriter Free Writing
Prospectuses (as
defined in Section 9(a)), or portions thereof, which WFASC is
required to file
with the Commission in electronic format and will use reasonable
efforts to
provide to WFASC such Free Writing Prospectuses, or portions
thereof, in either
Microsoft Word(R) or Microsoft Excel(R) format and not in a PDF,
except to the
extent that WFASC, in its sole discretion, waives such
requirements.
(d) The Underwriter represents and warrants to, and agrees with,
WFASC, as
of the date of the applicable Terms Agreement and as of the
Closing Date, that:
(i) In relation to each Member State of the European Economic
Area
which has implemented the Prospectus Directive (each, a
"Relevant Member
State"), it has not made and will not make an offer of
Certificates to the
public in that Relevant Member State prior to the publication of
a
prospectus in relation to the Certificates which has been
approved by the
competent authority in that Relevant Member State or, where
appropriate,
approved in another Relevant Member State and notified to the
competent
authority in that Relevant Member State, all in accordance with
the
Prospectus Directive, except that it may, with effect from and
including
the relevant implementation date, make an offer of Certificates
to the
public in that Relevant Member State at any time:
(A) to legal entities which are authorized or regulated to
operate in the financial markets or, if not so authorized or
regulated, whose corporate purpose is solely to invest in
securities;
(B) to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial
year;
(2) a total balance sheet of more than (euro)43,000,000; and (3)
an
annual net turnover of more than (euro)50,000,000, as shown in
its
last annual or consolidated accounts; or
(C) in any other circumstances which do not require the
publication by the issuer of a prospectus pursuant to Article 3
of
the Prospectus Directive.
For the purposes of this representation, the expression an
"offer of
Certificates to the public" in relation to any Certificates in
any
Relevant Member State means the communication in any form and by
any means
of sufficient information on the terms of the offer and the
Certificates
to be offered so as to enable an investor to decide to purchase
or
subscribe the Certificates, as the same may be varied in that
Member State
by any measure implementing the Prospectus Directive in that
Member State,
and the expression "Prospectus Directive" means the European
Commission
Directive 2003/71/EC and includes any relevant implementing
measure in
each Relevant Member State.
(ii) It has only communicated or cause to be communicated and
will
only communicate or cause to be communicated an invitation or
inducement
to engage in investment activity (within the meaning of Section
21 of the
United Kingdom Financial Services and Markets Act 2000 (the
"FSMA"))
received by it in connection with the issue or sale of the
Certificates in
circumstances in which Section 21(1) of the FSMA does not apply
to the
issuer.
(iii) It has complied and will comply with all applicable
provisions
of the FSMA with respect to anything done by it in relation to
the
Certificates in, from or otherwise involving the United
Kingdom.
5. Agreements. WFASC agrees with the Underwriter that:
(a) WFASC will cause the Prospectus to be filed with the
Commission
pursuant to Rule 424 under the Act and, if necessary, within 15
days of the
Closing Date, will file a report on Form 8-K setting forth
specific information
concerning the Certificates, and will promptly advise the
Underwriter when the
Prospectus has been so filed, and, prior to the termination of
the offering of
the Certificates, will also promptly advise the Underwriter (i)
when any
amendment to the Registration Statement has become effective or
any revision of
or supplement to the Prospectus has been so filed (unless such
amendment,
revision or supplement does not relate to the Certificates),
(ii) of any request
by the Commission for any amendment of the Registration
Statement or the
Prospectus or for any additional information (unless such
request does not
relate to the Certificates), and (iii) of the issuance by the
Commission of any
stop order suspending the effectiveness of the Registration
Statement with
respect to the Certificates or the institution or, to the
knowledge of WFASC,
the threatening of any proceeding for that purpose. WFASC will
use its best
efforts to prevent the issuance of any such stop order and, if
issued, to obtain
as soon as possible the withdrawal thereof. Except as otherwise
provided in
Section 5(b) hereof, WFASC will not file prior to the
termination of such
offering any amendment to the Registration Statement or any
revision of or
supplement to the Prospectus (other than any such amendment,
revision or
supplement which does not relate to the Certificates) which
shall be disapproved
by the Underwriter after reasonable notice and review of such
filing.
(b) If, at any time when a prospectus relating to the
Certificates is
required to be delivered under the Act (without regard to
reliance on Rule 174
under the Act) (i) any event occurs as a result of which the
Prospectus as then
amended or supplemented would include any untrue statement of a
material fact or
omit to state a material fact necessary to make the statements
therein in the
light of the circumstances under which they were made not
misleading, or (ii) it
shall be necessary to revise, amend or supplement the Prospectus
to comply with
the Act or the rules and regulations of the Commission
thereunder, WFASC
promptly will notify the Underwriter and will, upon request of
the Underwriter,
or may, after consultation with the Underwriter, prepare and
file with the
Commission a revision, amendment or supplement which will
correct such statement
or omission or effect such compliance, and furnish without
charge to the
Underwriter as many copies as the Underwriter may from time to
time reasonably
request of an amended Prospectus or a supplement to the
Prospectus which will
correct such statement or omission or effect such
compliance.
(c) WFASC will (i) furnish to the Underwriter and counsel for
the
Underwriter, without charge, conformed copies of the
Registration Statement
(including exhibits thereto) and, so long as delivery of a
prospectus relating
to the Certificates is required under the Act, as many copies of
the Prospectus
and any revisions or amendments thereof or supplements thereto
as may be
reasonably requested, and (ii) file promptly all reports and any
definitive
proxy or information statements required to be filed by WFASC
with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act (as
such requirements may be modified pursuant to Section 12(h) of
the Exchange Act)
subsequent to the date of the Prospectus and for so long as the
delivery of a
prospectus is required in connection with the offering or sale
of the
Certificates.
(d) WFASC will, as between itself and the Underwriter, pay all
expenses
incidental to the performance of its obligations under this
Agreement including,
without limitation, (i) expenses of preparing, printing,
reproducing and filing
the Registration Statement, the Prospectus, any Issuer Free
Writing Prospectus,
the Pooling and Servicing Agreement and the Certificates, (ii)
the cost of
delivering the Certificates to the Underwriter, insured to the
satisfaction of
the Underwriter, (iii) the fees charged by (a) securities rating
services for
rating the Certificates and (b) WFASC's independent accountants
in connection
with the agreed-upon procedures letter to be delivered pursuant
to Section 6(g)
hereof, (iv) the fees and expenses of the Trustee, the Trust
Administrator, if
applicable, and any agent of the Trustee or the Trust
Administrator, if
applicable, and the fees and disbursements of counsel for the
Trustee and the
Trust Administrator, if applicable, in connection with the
Pooling and Servicing
Agreement and the Certificates, and (v) all other costs and
expenses incidental
to the performance by WFASC of WFASC's obligations hereunder
which are not
otherwise specifically provided for in this subsection. It is
understood that,
except as provided in this paragraph (d) and in Sections 7 and
12 hereof, the
Underwriter will pay all of its own expenses, including (i) the
fees of any
counsel to the Underwriter, (ii) any transfer taxes on resale of
any of the
Certificates by it, (iii) any advertising expenses connected
with any offers
that the Underwriter may make, (iv) any expenses for the
qualification of the
Certificates under state securities laws or Blue Sky laws,
including filing fees
and the fees and disbursements of counsel for the Underwriter in
connection
therewith and in connection with the preparation of any Blue Sky
survey, and (v)
any expenses incurred in connection with the preparation and
delivery of any
Underwriter Free Writing Prospectus and the filing of such Free
Writing
Prospectus, if required to be filed by Underwriter with the
Commission.
(e) So long as any Certificates are outstanding, upon the
request of the
Underwriter, WFASC will, or will cause the Master Servicer to,
furnish to the
Underwriter, as soon as available, a copy of (i) the annual
statement of
compliance delivered by the Master Servicer to the Trustee under
the Pooling and
Servicing Agreement, (ii) the annual independent public
accountants' servicing
report furnished to the Trustee pursuant to the Pooling and
Servicing Agreement,
(iii) each report of WFASC regarding the Certificates filed with
the Commission
under the Exchange Act or mailed to the holders of the
Certificates, and (iv)
from time to time, such other information concerning the
Certificates which may
be furnished by WFASC or the Master Servicer without undue
expense and without
violation of applicable law.
(f) The effective date of the Registration Statement was within
three
years of the Closing Date of the Certificates. If the third
anniversary of the
effective date occurs within six months after the Closing Date,
the Company will
use reasonable efforts to take such action as may be necessary
or appropriate to
permit the public offering and sale of the Certificates as
contemplated herein.
6. Conditions to the Obligation of the Underwriter. The
obligation of the
Underwriter to purchase the Certificates shall be subject to the
accuracy in all
material respects of the representations and warranties on the
part of WFASC and
Wells Fargo Bank contained herein as of the date of the
applicable Terms
Agreement and as of the Closing Date, to the accuracy of the
statements of WFASC
and Wells Fargo Bank made in any officer's certificate pursuant
to the
provisions hereof, to the performance in all material respects
by WFASC of its
obligations hereunder and to the following additional
conditions:
(a) No stop order suspending the effectiveness of the
Registration
Statement with respect to the Certificates shall have been
issued and no
proceedings for that purpose shall have been instituted and be
pending or shall
have been threatened, and the Prospectus shall have been filed
or mailed for
filing with the Commission not later than required pursuant to
the rules and
regulations of the Commission.
(b) WFASC shall have furnished to the Underwriter a certificate,
dated the
Closing Date, of WFASC, signed by a vice president or an
assistant vice
president of WFASC, to the effect that the signer of such
certificate has
carefully examined the Registration Statement, the Prospectus
and this Agreement
and that:
(i) The representations and warranties of WFASC herein are true
and
correct in all material respects on and as of the Closing Date
with the
same effect as if made on the Closing Date, and WFASC has
complied with
all agreements and satisfied all the conditions on its part to
be
performed or satisfied on or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the
Registration
Statement with respect to the Certificates has been issued, and
no
proceedings for that purpose have been instituted and are
pending or, to
his or her knowledge, have been threatened as of the Closing
Date; and
(iii) Nothing has come to the attention of such person that
would
lead him or her to believe that the Prospectus contains any
untrue
statement of a material fact or omits to state any material fact
necessary
in order to make the statements therein, in the light of the
circumstances
under which they were made, not misleading.
(c) WFASC shall have caused Wells Fargo Bank to furnish to the
Underwriter
a certificate, dated the Closing Date, of Wells Fargo Bank,
signed by a vice
president or an assistant vice president of Wells Fargo Bank, to
the effect that
the representations and warranties of Wells Fargo Bank herein
are true and
correct in all material respects on and as of the Closing Date
with the same
effect as if made on the Closing Date, and Wells Fargo Bank has
in all material
respects complied with all agreements and satisfied all the
conditions on its
part to be performed or satisfied at or prior to the Closing
Date.
(d) WFASC shall have furnished to the Underwriter an opinion,
dated the
Closing Date, of Cadwalader, Wickersham & Taft LLP, counsel
to WFASC, to the
effect that:
(i) WFASC is a corporation validly existing and in good
standing
under the laws of the State of Delaware, with corporate power to
enter
into and perform its obligations under this Agreement, the
applicable
Terms Agreement and the Pooling and Servicing Agreement;
(ii) The execution and delivery of this Agreement and the
applicable
Terms Agreement have been duly authorized by WFASC and this
Agreement and
the applicable Terms Agreement have been duly executed and
delivered by
WFASC;
(iii) The execution and delivery of the Pooling and
Servicing
Agreement has been duly authorized by WFASC, and the Pooling and
Servicing
Agreement has been duly executed and delivered by WFASC and
constitutes a
legal, valid and binding agreement of WFASC, enforceable against
WFASC in
accordance with its terms subject to applicable bankruptcy,
insolvency,
fraudulent conveyance, reorganization, moratorium, receivership
or other
laws relating to or affecting creditors' rights generally or the
rights of
creditors of banks, and to general principles of equity
(regardless of
whether enforcement is sought in a proceeding at law or in
equity), and
except that the enforcement of rights with respect to
indemnification and
contribution obligations and provisions (a) purporting to waive
or limit
rights to trial by jury, oral amendments to written agreements
or rights
of set off or (b) relating to submission to jurisdiction, venue
or service
of process, may be limited by applicable law or considerations
of public
policy;
(iv) The Certificates have been duly authorized and executed
by
WFASC and, when the Certificates have been duly executed,
authenticated
and delivered in the manner contemplated in the Pooling and
Servicing
Agreement and paid for by the Underwriter pursuant to this
Agreement and
the applicable Terms Agreement, the Certificates will be validly
issued
and outstanding and entitled to the benefits provided by the
Pooling and
Servicing Agreement;
(v) The issuance and sale by WFASC of the Certificates to
the
Underwriter pursuant to this Agreement and the applicable Terms
Agreement,
the compliance by WFASC with the provisions of this Agreement,
the
applicable Terms Agreement and the Pooling and Servicing
Agreement, and
the consummation by WFASC of the transactions therein
contemplated (a) do
not require the consent, approval, authorization, order, or
qualification
of or registration with any New York State or federal
governmental
authority or, to the knowledge of such counsel, any New York
State or
federal court, except such as may be required under state
securities or
blue sky laws, recordations of the assignment of the Mortgage
Loans to the
Trustee pursuant to the Pooling and Servicing Agreement that
have not yet
been completed, and such other approvals as have been obtained
or
effected, (b) do not conflict with or result in a violation of
any
provision of the certificate of incorporation and bylaws of
WFASC or any
New York State or federal law, and (c) to the knowledge of such
counsel,
do not conflict with or result in a breach or violation of any
material
indenture, agreement or instrument to which WFASC is a party or
by which
it or any of its property is bound, or any judgment, decree or
order
applicable to WFASC, of any New York State or federal court,
regulatory
body, administrative agency or other governmental authority;
(vi) To the knowledge of such counsel, there is no legal or
governmental action, investigation or proceeding pending or
threatened
against WFASC (a) asserting the invalidity of this Agreement,
the
applicable Terms Agreement, the Pooling and Servicing Agreement
or the
Certificates, (b) seeking to prevent the issuance of the
Certificates or
the consummation of any of the transactions contemplated by this
Agreement
and the applicable Terms Agreement, (c) which would materially
and
adversely affect the performance by WFASC of its obligations
under, or the
validity or enforceability (with respect to WFASC) of, this
Agreement, the
applicable Terms Agreement, the Pooling and Servicing Agreement
or the
Certificates or (d) seeking to affect adversely the federal
income tax
attributes of the Certificates as described in the Prospectus
and the
Prospectus Supplement under the headings "Certain Federal Income
Tax
Consequences" and "Federal Income Tax Considerations,"
respectively. For
purposes of the opinion set forth in this paragraph, such
counsel has not
regarded any legal or governmental actions, investigations or
proceedings
to be "threatened" unless the potential litigant or governmental
authority
has manifested to WFASC a present intention to initiate such
proceedings;
(vii) The Pooling and Servicing Agreement is not required to
be
qualified under the Trust Indenture Act of 1939, as amended;
(viii) The Trust Estate (as defined in the Pooling and
Servicing
Agreement) is not required to be registered under the Investment
Company
Act of 1940, as amended;
(ix) The Registration Statement has been declared effective
under
the Act, and, to the knowledge of such counsel, no stop order
with respect
thereto has been issued by the Commission;
(x) The Registration Statement, as of its effective date, and
the
Prospectus and the Prospectus Supplement, as of the dates
thereof (in each
case, with the exception of any information incorporated by
reference
therein and any numerical, financial, statistical and
quantitative data
included therein, as to which such counsel expresses no view),
appeared on
their respective faces to be appropriately responsive in all
material
respects to the requirements of the Act and the rules and
regulations
thereunder applicable to such documents as of the relevant
date;
(xi) The statements in the Prospectus Supplement under the
headings
"Federal Income Tax Considerations" and "ERISA Considerations,"
insofar as
such statements purport to summarize matters of federal law or
legal
conclusions with respect thereto have been reviewed by such
counsel and
are correct in all material respects; and
(xii) Assuming that the Certificates are rated at the time
of
issuance in one of the two highest rating categories by a
nationally
recognized statistical rating organization, each such
Certificate at such
time will be a "mortgage related security" as such term is
defined in
Section 3(a)(41) of the Exchange Act.
Such opinion may express its reliance as to factual matters on
the
representations and warranties made by, and on certificates or
other documents
furnished by officers of, the parties to this Agreement and the
Pooling and
Servicing Agreement. Such opinion may assume the due
authorization, execution
and delivery of the instruments and documents referred to
therein by the parties
thereto other than WFASC. Such opinion may be qualified as an
opinion only on
the laws of the State of New York, the laws of each state in
which the writer of
the opinion is admitted to practice law and the federal law of
the United
States. To the extent that such firm relies upon the opinion of
other counsel in
rendering any portion of its opinion, the opinion of such other
counsel shall be
attached to and delivered with the opinion of such firm that is
delivered to the
Underwriter.
(e) The Master Servicer shall have furnished to the Underwriter
an
opinion, dated the Closing Date, of counsel to the Master
Servicer (who may be
an employee of the Master Servicer), to the effect that:
(i) The Master Servicer has been duly incorporated and is
validly
existing as a national banking association and has the power and
authority
to enter into, and to take all action required of it under, the
Pooling
and Servicing Agreement and the Servicing Agreement (as defined
in the
Pooling and Servicing Agreemen
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